The revelation that Oregon's district attorneys are proposing an end to non-unanimous jury convictions may have obscured the full scope of prosecutors' intentions on changing the state constitution.
The Oregon District Attorneys Association is considering a ballot initiative that would also strip defendants of the right to waive a jury trial and ask for a bench trial, in which a judge, rather than jury, decides guilt or innocence.
"Oregon's elected district attorneys are still discussing the specific content with various stakeholders," ODAA executive director Tim Colahan said in a statement. "We are looking at Measure 302 in its entirety and believe each of the three components are worthy of a further discussion."
On Wednesday, WW broke the news that ODAA prematurely revealed it would seek to scrap the language in the Oregon Constitution that allows defendants to be convicted with a 10-2 jury vote.
They would do that by asking voters to repeal Measure 302, a constitutional amendment passed in 1934.
Oregon and Louisiana are the only states that allow non-unanimous convictions in all cases except murder. Recent arguments that the nearly 84-year-old law passed because of racial animus have created a new urgency to change Oregon's constitution.
But it's not necessary to change the constitution to effectively end non-unanimous verdicts. "They could create change tomorrow," says American Civil Liberties Union of Oregon executive director David Rodgers. "District attorneys could require all prosecutors ask judges to provide jury instructions that would require a unanimous verdict."
That raises the question of why the DA's are pursuing reform with a ballot measure.
One possible answer: District attorneys can gain more control over trials by asking the voters to fully repeal Measure 302. A full repeal would put the power to choose a jury trial in prosecutors' hands.
Under current Oregon law, defendants have the right to waive a jury trial and request a bench trial in front of a judge. This speeds up cases and can benefit defendants who rely on legally complex arguments in court. In many other states, the decision to argue a case before a judge requires the consent of the prosecution.
The district attorneys stand to lose convictions because of an increase in hung juries if unanimity becomes a requirement. In return, they might want the power to force a trial before a jury.
ODAA lobbyist Amanda Dalton confirms that such a trade-off is something the state's prosecutors are mulling. She pointed WW to statements that Colahan, the executive director, made last year.
In those statements, he said that an end to non-unanimous verdicts should be twinned with removing the right of defendants to request a bench trial.
"Should the legislature or the citizens of Oregon seek to change this longstanding law, then the only course that meets the criminal justice balancing test is to wholly repeal Measure 302," Colahan said in a letter to the interim Joint Judiciary Committee in November. "Repeal the non-unanimous requirement for conviction. Repeal the non-unanimous requirement for acquittal. And allow the state, on behalf of the rights of citizens, to request cases be tried to a jury."
The move allows DA's to make a concession to reform advocates while also claiming a victory for crime victims.
"Whatever we do, it needs to have balance for crime victims and defendants," says Clackamas County District Attorney John Foote.
The move to revoke the right to choose a bench trial could sink the ballot measure.
Oregonians have rejected the change before. In 1999, state lawmakers referred Measure 70 to Oregon voters, which would have given prosecutors the right to demand a jury trial in criminal cases. The measure failed with more than 58 percent of votes cast against it.
Attaching the bench trial issue will force even the most dedicated repeal advocates to question their vote.
"I don't know how I would vote," says Professor Aliza Kaplan, who teaches at Lewis & Clark Law School and popularized the argument that Oregon's non-unanimous jury verdicts have roots in racism.
"We all win if we get rid of non-unanimous juries," Kaplan says. "You don't have to get something for ending this practice. It should just be enough that we're getting this horrible law off our books."
Oregon's defense lawyers would almost certainly oppose the measure if it includes a repeal of a defendant's right to waive a jury trial.
But while they wait for language, reform advocates of all stripes seem to agree that non-unanimous jury verdicts need to go.
"We wouldn't support the repeal of a due process right," says Mary Sofia, a lobbyist for the Oregon Criminal Defense Lawyers Association, "but we absolutely support getting rid of the non-unanimous jury verdict because it's the right thing to do."